Appellant was convicted in the District Court of Bee County for transporting intoxicating liquor and his punishment assessed at one year in the penitentiary. Complaint is made to the court's charge on transportation. We see no error on this phase of the case and no harm shown to defendant under Art. 743 Cow. C. P.
Appellant complains of the action of the court in permitting the sheriff Malone to testify, after stating that he overtook defendant near the fair ground and did not intend to let him leave there if he could help it and after he had taken the bottle from him he told him to let's go back to the hangar and when they started back to the south end of the hangar, the defendant said "Chief, you are going to ruin me, just think about my folks. My goodness, what in the world will I do? Ain't there some way we can stop this or quash it?" and he told him he *Page 513 was talking to the wrong fellow, that when they reached the south end of hangar the sheriff asked "What have we got?" and asked for his, defendant's keys, and that the defendant slapped his hand away, and he told him not to do that, to give him those keys and he slapped his hand away again and then he, sheriff, poked defendant right in the breast or stomach with his gun, and he dropped the keys and upon unlocking the hangar and another door he found a quantity of bottles of whiskey which defendant begged him to let him break and said he would break every bit of it before his eyes. This testimony was objected to because defendant was under arrest at the time said statements were made. The court admitted same, he states upon the ground that it was res gestae. The record shows the State was relying upon a conviction by reason of taking a bottle of whiskey off of defendant's person prior thereto; the qualification to the bill states it was about seven minutes from the time the sheriff first saw him, defendant, until the last statement was made. We fail to see how the statements made by defendant at the time of the finding of the whiskey in the hangar and the conduct of defendant and the sheriff and statements of both relative to obtaining the keys and breaking the whiskey as set out in said bill throw any light on the alleged transportation of the bottle taken off of his person, and further do not believe that this testimony comes under the head of res gestae, and that same should not have been admitted. Under a charge of having whiskey in his possession for sale it might be permissible as a circumstance to show the finding of this whiskey as bearing on the intent of defendant but his statements as above set out as well as the testimony of the witness Wright to the same effect was not admissible. Stanchel v. State, 231 S.W. 120 and Walton v. State, 41 Tex. Crim. 454. But as the case will be reversed on another point, it is unnecessary to discuss this matter further.
Appellant also complains to the action of the jury in discussing while considering their verdict, the failure of the defendant to testify upon the trial. Three of the jurors made affidavits that after they retired and before reaching a verdict, that it was argued by members of the jury to the effect that if the defendant was not guilty why didn't he go on the stand and swear that he did not do it; that if they were on trial and not guilty, they would take the stand and deny the charge. One of the affiants stated at least seven or more of the jury argued that. The State placed all the jurors upon the witness *Page 514 stand and the most of them testified that it was discussed or mentioned after the first ballot was taken and they stood ten to two for conviction, and they remained that way until the following day, and the others said they did not hear it, but would not say it didn't ocur. In fact, there was no denial of it. The juror Marlin testified that he made the statement that he personally felt like if he was on trial and pleaded not guilty that he would swear to it until he died, that he would contend for it that way. All of the jurors except one on the stand testified that the argument made and the failure of the defendant to testify didn't influence their verdict. One of the jurors testified the argument influenced him. It was conclusively shown these statements were made before a verdict was reached, and after the jury stood ten to two for conviction. We are of the opinion that the conduct of the jury comes clearly within the prohibited rule. Branch's P. C. Sec. 569, pp. 292 and 293. Hennington v. State, 271 S.W. 624. We think the above authorities clearly hold that the conduct of the jury in this case was reversible error and the court should have granted a new trial. There are other errors complained of in the record, but we do not deem it necessay to pass upon same at this time.
For the reasons above stated the judgment of the trial court is reversed and remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.